July 7, 2023
The decade-long delay in the completion of the Provisional Federal Constitution (PFC) is major threat tostatebuildingin Somalia.Although one of the reasons behind the delayhas been attributed to the difficult process of establishing the Federal Member States (FMS), thedecade-longdelayatteststhe unwillingness of Somalisto unite as citizens(not as clan members) of the Federal Republic of Somalia (FRS) governed bythe rule of law. Any further delay in completing the constitution will lead tototal failure of Somalia statebuilding efforts.
The PFC was the product of contentiousconstitutional process pushed forward by the international communityfor the establishment of a permanent federal government of Somalia (FGS),vestedwith national sovereignty, eligible for international engagement and assistance. The most important clauses of the PFC are the delimitations of the boundaries of theFRS, theenumeration of the inviolable human rights, and the foundational principals underlying a democratic federal system of governanceenough toguide good leaderswho are determinedto upliftingtheir people out of statelessness, civil strife, and abject poverty. In parenthesis, it’s worth remembering that since 1992 Somalia remains subject to Chapter VII of the UN Charter with UN Security Council Resolution 794 (1992), continuously reaffirmed until today.
Unfortunately, someclauses of the PFC are contradictory, while others are left fornegotiation.Among the latter clauses left fornegotiations include thedefinition of the functionality and practicality ofthe federal system adopted to decentralize the state power for good governance.
For example, article 48 concerning the structure of the federal state establishes thetwo levels of federal government – FGS, FMS and Local Governments.Furthermore,article 49 concerning the number and boundaries of the FMS, divides the territorial federal stateinto 18 administrative regions that existed before the collapse of the Somali State in 1991. Each region consistedof number of districts. The legitimacy of all FMS hasbeen subjected to the approval of the federal parliament. Therefore, despite the stipulations of the articles 120 (Institutions of the FMS), 121 (Principles for FMS Constitutions), and 142 (Existing FMS), all FMS including Puntlandlacklegal legitimacyas perarticles 48 and 49.
The reliance on certain articles and disregard of other articlescreatesnever ending contentionthat will forcethe repudiation of the federal system wronglyinterpreted as “different sovereign communities owning and controlling certain areas of Somali territory,” an interpretation that rejectsthe principleof sovereignty of the FRS invested in all people (article 1 {2}),Somali Citizenship(article 8),and the state ownership of the Land (article 43)included in the PFC. Suchinterpretation of the federal system obstructs the emergence of federal state capable of advancing the security, defense, and socio-economic development of whole Somalia as inviolable and indivisible territory and people. The responsibilities of the FGSfor national defense, naturalization and immigration, foreign relations, development planning, and fiscal and monetary management presumebroad powers of the FGS throughout the FRS.
The autonomy of theFMS should not challenge the leadership role of the FGS and the hierarchical linkage of the political, administrative, security, judiciary, economic, and defense activities of the countrywithin the context and limits of the federal constitution. It’s sacrosanct principle that all decisions and actions of the federal government, FMS, and local governments should not violate the letter and spirit of the federal and state constitutions and laws.
Puntland State,one of seven (7) FMS, played a leading role in the choice of the federal systemto prevent concentration of power inthe central government and to enhancethe role and power of the regional states. However, lately Puntland stateclaimed separationstatus from the federal government.
Without prejudice to the complaints the state of Puntland may have against theFGS, the standoffbetween the two should not derail the completion of the federal constitution that will address the multiple issues that are obstacleto the realization of peaceful, united and democratic FRS. It’s important to underscore here that the completion process of PFC is not an exclusive responsibility and competence of the FGS and FMS. The PFC prescribes the process and the institutions responsiblefor its review (completion/amendment).
The constitutional process is open for effective participation of allstakeholders, interested groups and individuals, because the constitution is a social contract that binds all people living in the FRS. The FGS bears the responsibility of effectively and competently leading and managing the process with integrity and transparency.
After boycotting the participationof the National Consultative Council (NCC) meetings between theFGS andthe FMS, Puntland state issued five-page statement, under the title “The Puntland Government’s Proposal on the Solutions to the Challenges Surrounding the State Building in Somalia.”It claims“remarkable investmentto realize a peaceful, united and democratic FGS,”and the voicing of “numerous of serious concerns regardingthe lack of political will and systematic delaysin reaching negotiated political settlements that would foster the completion of the PFC.”It denounced the NCC,a forum fordialogue between FGS and FMS, for proposing unconstitutional and non-inclusive initiatives.
Therefore, Puntland government has decided tonegotiate separatelywith the FGS on the following ten issues.
- Th process of reviewing and finalizing the provisional constitution
- Delineation of government powers (power sharing formula)
- Distribution of national resources and international development aid
- Administration of revenue and national fiscal policy
- The issue of north west regions of Somalia (Somaliland)
- Status of Capital City of Somalia
- The introduction and implementation of federal government regulations
- Implementation of democratic elections
- Building national security forces
- Conflict in Las Anod
Some of the issues and opinions are either settled in the PFC or fall outside the constitutional scope. The important task is to focuson the necessary amendments for the completion of the constitution whichestablishes the constraints/guardrails needed to prevent human rights abuses, corruption, and civil strife.
Without doubt, the daily performance of the FGS to address the multipleproblemsof the daywithout a final constitutiontriggers disputation and confusion. Thus, the key to address the disputation and confusion prolonging the suffering of the Somali people is to devote serious attention and efforts to the completion of the PFC which shouldgo through a rigorous process of debate for contribution and ownershipbefore formal approval by the federal parliament and later by a National Constituency Assembly (NCA) of 2,000 delegates for interim adoption.
All FMS constitutions will have to harmonize their state constitutions with the final version of the federal constitution. No FMS constitution should infringethe spirit and letter of the federal constitution.
In the constitutional amendment process, the role of the NCC is to provideconstructive contributions for a perfect constitution. The people and institutions of the FMS should have the opportunity to debate the final draft of the completed constitution before the federal parliament and finally the NCA approve it for interim adoption.
The decision of Puntland state to negotiate separatelywith the federal government on constitutional issuescreates problems. First, itmotivates other FMSto demand the separate treatment for different reasons. Second, it undermines the collaborativeworking relationship between the leaders of the FGS and FMS through the NCC. Third, it forces the FGS to deviatefrom the right path ofconsensus building on the constitutional issues.A unified position of the NCC facilitates a fast-movingprocess of the constitutional amendment. The final draft should be published for formal public debate.
The positions of Puntland State explained in the above-mentioned statement convey sense of backpaddlingbecause they are far fromthe federal system envisaged in the PFC. Both the foundations of the FRS andthe need for and purpose of the FGS are questioned.
It’s hard to reconcile thePuntland’s position of separatestatus with the position ofsupporting the resolution of the concerns of the people and administration of the Northern Regions of Somalia (Somaliland) through dialogue to ensure the preservation of the territorial integrity and unity of Somalia.Puntland state do not recognize the nationwide role, responsibility,and authority of some of the federal institutions like the federal parliament, the executivebranch of the FGS (article 99), the supremeand the constitutional courts, the central bank, the Somali National Army, the Intelligence service, the civil aviation, the ports and the international airports authority, the transportation and communication authority, the revenue authority, and the national independent election Commission.
There is confusion about the difference between the Capital City of the FRS – the seat of the FGS – which is Mogadishu and the Benadir Region which is one of the 18 Regions forming the FRS. The capital Mogadishu must be located in a designated area called “Mogadishu,” which will have separate administrative arrangement, where all federal government institutions and foreign diplomats will be headquartered.
In the federal system, the people of Benadir Region have the right of self-governance as other regions. Benadir Region should have new districtas its “capital” and develop new plan of reconstruction to recover from the last three decades of destruction, dilapidation, and mismanagement.
The completed constitution must be clean, free from contradictions and issues left for negotiations. The final version shouldconsolidate the sovereignty, territorial integrity, political independence and unity of the FRS.
Dr. Mohamud M. Uluso
Mohamuduluso@gmail.com
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Horn Broadcasting Network.